Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.94 of 2012 ====================================================== Lakhiran Yadav, son of Late Bhular Yadav, resident of village Jogbani, P.S. Gamharia, District Madhepura .... .... Appellant/s Versus 1. Deep Narayan Yadav son of Jagdeo Prasad Yadav, 2. Usha Devi, wife of Deep Narayan Yadav 3. Musho Yadav, son of Late Munilal Yadav 4. Manijar Yadav, son of Late Munilal Yadav, all resident of village Chiki Tola: Jogbani, P.S. Gamharia, District Madhepura 5. Savitri Devi, daughter of Late Surat Lal Yadav, wife of Ram Krishna Yadav, resident of village & P.O: Tamganj, P.S. Narpatganj, District Araria 6. Shanti Devi, daughter of late Surat Lal Yadav, wife of Puran Yadav, resident of villave & P.O. Thadhi, P.S. Pipra, District Supaul 7. Neelam Devi, daughter of late Surat Lal Yadav, wife of Gajendra Yadav, resident of village Bairiya, P.S. Jadia, District Supaul 8. Ashok Kumar Yadav 9. Arbind Kumar Yadav, both are sons of late Surat Lal Yadav, resident of village Koparia, P.S. Triveniganj, District Supaul. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ganpathi Trivedi, Adv. Mr. Sunil Kumar Singh, Adv. For the Respondent/s : ……………. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 6 17-12-2013 This appeal is directed against the judgment and decree dated 12.12.2011 passed by the Additional District Judge, F.T.C.I, Madhepura in Title Appeal No. 31 of 2006 whereby the appellate Court below while allowing the appeal has reversed the judgment and decree dated 23.12.1998/07.01.99 passed by the learned Sub Judge-I, Madhepura in Title Suit No. 9 of 1993 whereby the suit was decreed.
Legal Reasoning
I have heard Mr. Ganpati Trivedi, learned counsel for the 2 Patna High Court SA No.94 of 2012 (6) dt.17-12-2013 2 / 9 appellant and perused the judgment passed by the Court(s) below. I shall be going by the status of the parties as occurring before the trial Court for the sake of convenience. The suit in question was instituted praying for a decree of specific performance of contract as against the defendant 1st set and for directing him for executing sale deeds in respect of 2 bighas and 7 kathas of land in favour of the plaintiff after receiving the balance amount as well as for restoration of possession of the suit land to the plaintiff in case they are found dispossessed. A further prayer was made by the plaintiff for declaring the sale deeds dated 26.2.1993 executed by the defendant 1st set in favour of the defendant 2nd set and the gift deed dated 30.7.1993 as void document and not binding on the plaintiff. It is the case of the plaintiff that he was a Bataidar with the defendant 1st set. According to the plaintiff, the defendant 1st set fell in the need of money in the year 1992 and accordingly he offered to sale the suit land measuring 2 bighas and 7 kathas, detailed at the foot of the plaint for a consideration of Rs. 1,31,000/- of which the plaintiff deposited Rs. 86,700/-. According to the plaintiff, the defendant 1st set put him in possession and he has continued as such. It is stated that since he had confidence in the defendant 1st set hence no written document 3 Patna High Court SA No.94 of 2012 (6) dt.17-12-2013 3 / 9 was executed. It is further the case of the plaintiff that since the defendant 1st set did not act as per oral agreement rather proceeded to sale a portion of land in favour of the defendant 2nd set, that he served a legal notice and which was followed by the suit in question. The trial Court on the basis of the rival pleadings framed the following eight issues: “1. Is the suit framed maintainable ? 2. Has the plaintiff got cause of action for the suit? 3. Is the suit barred by limitation? 4. Whether there has been agreement between the plaintiff and the defendant first party for sale of the suit property? 5. Whether the Defendant second party is a bonafide purchaser for value and without notice? 6. Whether the plaintiff is ready and willing to perform his part of the agreement? 7. Whether the plaintiff is entitled to get a decree for specific performance of contract? 8. Any other relief or reliefs to which the plaintiff relief or reliefs to which the plaintiff the deemed entitled? While the suit was pending, a compromise was entered into between the parties on 3.8.1993. According to the compromise, the plaintiff was to make payment of Rs. 35,600/- to the defendant 1st set and whereupon he would be executing the sale deed for the disputed land in his favour. It is not in dispute that whereas the sale deed executed in favour of the defendant 2nd set dated 26.2.1993 and the gift deed dated 30.7.1993 were duly registered, the defendant 1st set also executed eight sale deeds in favour of the plaintiff and his companions of which four were in the name of the 4 Patna High Court SA No.94 of 2012 (6) dt.17-12-2013 4 / 9 plaintiff Lakhiram Yadav, three in favour of Shambhu Yadav and one in favour of Jagan Yadav. Since according to the plaintiff, the defendant had violated the terms of compromise hence he pressed the suit and which was decreed in his favour vide judgment and decree dated 23.12.1998/07.1.1999. Although the vendor defendant 1st set did appear initially but thereafter he abandoned the suit which was mainly contested by the defendant 2nd set- the other set of purchasers. Being aggrieved by the judgment and decree passed by the trial Court, the defendant 2nd set-purchasers preferred Title Appeal No. 31 of 2006 and which has since been allowed by the impugned judgment and decree dated 12.12.2011 and hence this appeal at the instance of the plaintiff. Mr. Ganpati Trivedi, learned counsel appearing on behalf of the plaintiff has submitted that even when the oral agreement entered into between the parties finds its corroboration in the compromise entered in between the parties on 3.8.1993 which was relatable to the entire suit property, yet the defendant 1st set most malafidely chose to execute sale deeds only for a part of the agreed area of 2 bighas and 7 kathas, thus violating the terms. It is further argued by Mr. Trivedi that even when there is no instance to show that there was lack of willingness on the part of the plaintiff to make payment of the balance amount, the appellate 5 Patna High Court SA No.94 of 2012 (6) dt.17-12-2013 5 / 9 Court has committed a serious infirmity in holding that the plaintiff were found wanting in performing their part of obligation. It has been contended by Mr. Trivedi that neither the plaintiffs have been found wanting in so far as the provisions of Section 16 of the Specific Relief Act is concerned nor the case of the defendant 2nd set is protected under the provisions of Section 19(b) of the said Act inasmuch as the oral agreement in between the plaintiff and the defendant 1st set was well within the knowledge of the defendant 2nd set and yet they have entered into the sale transaction. It is thus sought to be submitted by Mr. Trivedi that the defendant 2nd set not being a bonafide purchaser for value, the sale made in his favour after oral agreement in between the parties, cannot be protected and the trial Court had rightly decreed the suit. Trying to formulate a substantial question regarding the incorrect appreciation by the appellate Court below of the legal position emanating from the issues raised in this appeal, it was submitted that the plaintiffs have made out a case for indulgence. I have Mr. Ganpati Trivedi, learned counsel for the appellant and I have perused the materials on records of the appeal. There is no contest to the position that the entire suit is based upon an oral agreement, if any. Even when the plaintiff 6 Patna High Court SA No.94 of 2012 (6) dt.17-12-2013 6 / 9 speaks of an oral agreement between him and the defendant 1st set in the year 1992, the specific date is conspicuously missing. It is the case of the plaintiff that the said oral agreement took place in the presence of five persons namely Shibnandan Yadav, Shubaklal Yadav, Bisheshwar Yadav, Ravi Yadav and Jogan Yadav. It is also the case of the plaintiff that Ext. 1 shows payment of Rs. 36,000/- by the plaintiff made in presence of these witnesses, Ext. 1/A shows payment of Rs. 33,200/- by the plaintiff to the defendant 1st set on 29.3.1992 and Ext. 1/B shows payment of Rs. 11,000/-. The three receipts are admittedly on plain papers and do not bear any details of land or the purpose for which it was being paid. Thus even if the plaintiff did make out any case regarding an oral agreement in between the parties, there is nothing on record of the case to show and support that the agreement was for sale of 2 bighas and 7 kathas. On the contrary, a sale deed having been executed in favour of the defendant 2nd set on 26.2.1993 which was followed by a gift deed on 30.7.1993 and which was followed by the compromise drafted between the parties on 3.8.1993, the compromise simply mentions that a sum of Rs. 35,600/- would be paid by the plaintiff upon execution of the sale deeds relating to the disputed land by the defendant 1st set. This compromise gains relevance for many a reason. Firstly, it was entered in between the parties while the suit was pending and though related to the 7 Patna High Court SA No.94 of 2012 (6) dt.17-12-2013 7 / 9 dispute but yet did not specify the exact area of land which was to be transacted. It also did not bear any covenant regarding the sale deed dated 26.2.1993 and the gift deed dated 30.7.1993 executed by the defendant 1st set in favour of the defendant 2nd set. On the contrary, following the compromise on 3.8.1993, the sale deeds and the gift deed was registered on the same date and 8 sale deeds were executed by the defendant 1st set in favour of the plaintiff. It is the contention of the plaintiff that the defendant 1st set violated the terms of the compromise inasmuch as it related to the entire suit land. Although such is the submission of the plaintiff but there is no categorical assertion that the compromise was relatable to the entire suit land. Even when the plaintiff was aware of the sale deed and the gift deed in favour of the defendant 2nd set no such stipulation intending to nullify the said sale deed or gift deed finds mention in the compromise. The effect of compromise which was entered into after the sale deed and gift deed was executed by the defendant No.1 in favour of the defendant 2nd set would be that the area covering the sale deed and the gift deed would stand excluded from the area in compromise in absence of a categorical mention of area in the compromise. Whereas it has been the contention of the plaintiff that the area under agreement was 2 bighas 7 kathas, the contention of the vendor defendant 1st set was that he had executed the sale deeds as per the agreement 8 Patna High Court SA No.94 of 2012 (6) dt.17-12-2013 8 / 9 and the money deposited by the plaintiff. In fact following the compromise, the entire frame of the suit stood altered inasmuch as there lay no occasion for the plaintiff to pray for a decree relating to 2 bighas and 7 kathas of land which admittedly stood reduced to the sale deeds executed by the 1st set in his favour and in favour of his companions, following the compromise. Admittedly, the compromise was entered during the pendency of the suit and following which eight sale deeds were executed by the defendant 1st set. Though as per the defendant 1st set, eight deeds were executed in favour of the plaintiff and his companions but even if the objection of the plaintiff to the said statement of the defendant 1st set is taken on the face value and for the sake of argument it is accepted that only four deeds were executed in his favour, yet the subject matter of dispute stood reduced to that extent at least. This relevant aspect of the matter has not been considered by the trial Court. The suit as framed certainly could not proceed by virtue of the compromise and the execution of the sale deeds inasmuch as the relief prayed as well as the cause of action had now undergone a change. Admittedly, no attempt was made by the plaintiff to amend his suit to the aforementioned extent and in fact the suit not only proceeded in the original form rather was also decreed. Meaning thereby the plaintiff got a relief in excess of 9 Patna High Court SA No.94 of 2012 (6) dt.17-12-2013 9 / 9 his prayer. Although an allegation has been made by the plaintiff regarding violation by the defendants to the compromise but the said single aspect by itself is a reflection that the cause of action had changed. It is more than manifest that by virtue of the compromise the suit as framed could not proceed and no attempt having been made by the plaintiff to rectify this error, the judgment and decree passed by the trial Court in such circumstance was an illegality and has been correctly set aside by the judgment and decree of the appellate Court as impugned in this appeal. For the reasons aforementioned, this Court is not persuaded to interfere with the judgment and decree passed by the appellate Court below as impugned and this appeal failing to raise any substantial question of law is dismissed accordingly. Bibhash/- (Jyoti Saran, J.)